Civil Rights, Free Speech and Freedom Buttons

The First Amendment proved a crucial tool during the civil rights movement. Likewise, much First Amendment jurisprudence arose during the galvanizing social movement of the 1950s and 1960s, as civil rights protestors marched in the streets, protested segregation laws, assembled on public streets and faced defamation suits for speaking out on public abuses.

Consider the litany of important U.S. Supreme Court cases that arose during the civil rights movement. Three examples are: NAACP v. Alabama (1958) recognized a right of association and protected NAACP members from harassment by the repressive state government; Edwards v. South Carolina (1963) involved a pristine example of assembly and petition rights, as 187 African-American youths had their breach-of-peace convictions overturned for marching to the state capital protesting segregation; New York Times Co. v. Sullivan (1964) not only constitutionalized libel law but also arguably saved the civil rights movement by protecting the editorial advertisement in the New York Times from a state libel suit that arose in the Alabama state court system.

The civil rights movement also proved significant for the development of student speech. When many think of student speech, they naturally think of the seminal U.S. Supreme Court decision, Tinker v. Des Moines Indep. Comm. Sch. Dist. (1969) when the high court ruled that school officials in Iowa violated the First Amendment rights of students by suspending them for wearing black peace armbands to protest the Vietnam War.

The Court developed the “substantial disruption” standard in Tinker, providing a test to determine whether student speech received free-speech protection.

But, Tinker did not arise from a legal vacuum. The Court did not create the “substantial disruption” test.

The Supreme Court borrowed the test from a pair of 5th Circuit decisions out of Mississippi.

In my new book Let The Students Speak: A History of the Fight for Free Expression in America’s Schools, I delve into the history of those two 5th Circuit cases – particularly Burnside v. Byars (5th Cir. 1966).

Burnside involved three courageous young students at an all-black school in Philadelphia, Mississippi, who wore voting rights buttons to school.

The courage they displayed was remarkable. Consider that Philadelphia, Mississippi, was the very place where civil rights workers James Chaney, Andrew Goodman and Michael Schwerner were murdered in June 1964.

But, the NAACP’s Legal Defense Fund helped these young women challenge the censorship of the “Freedom Now” buttons.

In the book, I interview Henry Aronson, one of the attorneys for the girls. He spoke of the “amazing courage and strength” of those plaintiffs.

After losing before a federal district court judge, the three young women appealed to the 5th U.S. Circuit Court of Appeals – a court that featured some of the country’s great jurists, as depicted by Jack Bass in his great book Unlikely Heroes.

In Burnside v. Byars, Judge Walter Gewin wrote that school officials “cannot infringe on their students’ right to free and unrestricted expression … where the exercise of such rights in the school buildings and schoolrooms do not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.

This passage proved vital to the Supreme Court in Tinker and for student speech jurisprudence overall.

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